PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________ 

UNITED STATES OF AMERICA, 

Plaintiff - Appellee, 

v. 

IRA LEE WILKINS, 

 Defendant - Appellant. 

No. 19-5114 

 

_________________________________ 

Appeal from the United States District Court 

for the Northern District of Oklahoma 

(D.C. No. 4:19-CR-00116-JED-1)

_________________________________ 

Shira Kieval, Assistant Federal Public Defender, and Virginia L. Grady, 

Federal Public Defender, Denver, Colorado, for the Defendant-Appellant. 

Clinton J. Johnson, Acting United States Attorney, and Leena Alam, 

Assistant United States Attorney, Tulsa, Oklahoma, for the PlaintiffAppellee. 

_________________________________ 

Before BACHARACH, BRISCOE, and MURPHY, Circuit Judges. 

_________________________________ 

BACHARACH, Circuit Judge. 

_________________________________ 

 This case arises out of Mr. Ira Lee Wilkins’s sentence for unlawfully 

possessing a firearm. See 18 U.S.C. § 922(g)(1). In deciding the sentence, 

the district court considered the effect of Mr. Wilkins’s prior conviction in 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 15, 2022

Christopher M. Wolpert 

Clerk of Court

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Texas for aggravated robbery. The district court characterized this offense 

as a “crime of violence” under the sentencing guidelines, which increased 

the base-offense level. U.S.S.G. §§ 2K2.1(a)(4)(A) & (6). Mr. Wilkins 

appeals, arguing for the first time that the district court shouldn’t have 

considered aggravated robbery as a crime of violence.1

 We affirm. 

I. To determine whether aggravated robbery in Texas constitutes a 

crime of violence, we must determine the applicable approach. 

To determine whether a prior offense constitutes a crime of violence, 

we apply either the categorical approach or the modified categorical 

approach. United States v. Kendall, 876 F.3d 1264, 1267–68 (10th Cir. 

2017). 

A. Categorical Approach 

Under the categorical approach, we compare the underlying state 

statute to the guidelines’ definition of a “crime of violence.” Id. at 1267. If 

the statute sweeps beyond the guidelines’ definition of a “crime of 

1

 After we affirmed the sentence, Mr. Wilkins raised a new issue in the 

United States Supreme Court, urging reconsideration based on Borden v. 

United States, 141 S. Ct. 1817 (2021). There the Supreme Court had 

concluded that a criminal offense with a mens rea of recklessness could not 

constitute a violent felony under the Armed Career Criminal Act. Id. at 

1834. The Supreme Court granted the request, remanding for consideration 

of Borden. We have applied Borden to the sentencing guidelines, holding 

that a crime of violence under the sentencing guidelines requires a mens 

rea greater than recklessness. United States v. Ash, 7 F.4th 962, 963 (10th 

Cir. 2021). 

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violence,” we wouldn’t consider the offense a crime of violence. Id. at 

1267–68. 

We start with how Texas defines aggravated robbery. Under Texas 

law, a person commits aggravated robbery if “he commits robbery as 

defined in Section 29.02, and he 

(1) causes serious bodily injury to another; 

(2) uses or exhibits a deadly weapon; or 

(3) causes bodily injury to another person or threatens or places 

another person in fear of imminent bodily injury or death, if the 

other person is: 

(A) 65 years of age or older; or 

(B) a disabled person.” 

Tex. Penal Code § 29.03(a). 

This definition turns on the meaning of “robbery.” A person commits 

robbery under § 29.02 “if, in the course of committing theft . . . and with 

intent to obtain or maintain control of the property, he: 

(1) intentionally, knowingly, or recklessly causes bodily injury to 

another; or 

(2) intentionally or knowingly threatens or places another in fear 

of imminent bodily injury or death.” 

Tex. Penal Code § 29.02(a). 

We compare this definition of aggravated robbery to the guidelines’ 

definition of a “crime of violence.” The applicable guideline provision, 

§ 4B1.2(a)(1), defines a “crime of violence” as a state felony that “has as 

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an element the use, attempted use, or threatened use of physical force 

against the person of another.” U.S.S.G. § 4B1.2(a)(1).2

 So we must decide 

whether Texas’s offense of aggravated robbery necessarily contains an 

element of using, attempting to use, or threatening to use physical force 

against “the person of another.” Id. 

B. Modified Categorical Approach 

The parties agree that Texas’s statutes for robbery and aggravated 

robbery cover some conduct that wouldn’t fit the applicable definition of a 

“crime of violence.” But the government argues that 

 the Texas statutes create separate offenses and 

 Mr. Wilkins’s conviction involves only the offense that 

constitutes a “crime of violence.” 

So we must decide whether the Texas statutes refer to different crimes or 

just different ways of committing a single crime. We call this inquiry 

“divisibility.” United States v. Titties, 852 F.3d 1257, 1266 (10th Cir. 

2017).

2

 The guidelines contain a separate definition that treats “robbery” as 

one of the crimes constituting a “crime of violence.” U.S.S.G. 

§ 4B1.2(a)(2). Under this part of the definition, a Texas robbery counts 

only if it fits the generic definition of a robbery. See United States v. 

O’Connor, 874 F.3d 1147, 1154 (10th Cir. 2017) (concluding that robbery 

under the Hobbs Act, which requires the use or threat of force against 

property, does not qualify as generic robbery and extends beyond 

§ 4B1.2(a)(2)). The government does not characterize Mr. Wilkins’s 

offense as a generic robbery, so this definition does not apply. 

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A statute is “divisible,” creating multiple crimes, when the statute 

“sets out one or more elements of the offense in the alternative.” Descamps 

v. United States, 570 U.S. 254, 257 (2013) (emphasis added). But 

disjunctively listed statutory components do not automatically qualify as 

elements. United States v. Titties, 852 F.3d 1257, 1267 (10th Cir. 2017). 

When the statute merely lists “various factual ways of committing some 

component of the offense,” the statutory components are considered means

rather than elements. Id. (internal quotation marks & citation omitted). A 

statute is divisible only when it lists “multiple, alternative elements, and 

so effectively creates several different . . . crimes.” Id. (internal quotation 

marks & citation omitted). 

If the statute is divisible, creating multiple crimes, the district court 

applies the modified categorical approach to determine which crime was 

committed. Id. To make that determination, the court consults a limited 

class of record documents. Id. at 1266. Once the court determines which 

crime the defendant committed, the court compares the elements of that 

crime to the guidelines’ definition of a “crime of violence.” Id. 

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II. It would not have been an obvious error for the district court to 

classify the Texas robbery statute as divisible, creating multiple 

crimes. 

At issue is the divisibility of the Texas robbery statute, § 29.02(a).3

See p. 3, above. Subsection “1” requires only recklessness; Subsection “2” 

requires either intentional or knowing conduct. So our threshold task is to 

decide whether these statutory components refer to elements (reflecting 

two separate crimes) or means (different ways of committing the same 

offense). Under the plain-error standard, Mr. Wilkins doesn’t show an 

obvious error in considering the statutory components as elements. 

A. We apply the plain-error standard, preventing reversal 

unless the alleged error is obvious. 

If Mr. Wilkins had preserved the issue, the government would need 

to establish that 

 the Texas robbery statute contains two sets of elements and 

 Mr. Wilkins’s conviction is a “crime of violence” under the 

guidelines because the elements require the use, attempt to use, 

or threat to use physical force against another person. 

3

 Mr. Wilkins also argues that the aggravator at issue—§ 29.03(a)(2) 

(“using or exhibiting a deadly weapon”)—does not qualify as a crime of 

violence because recklessness would suffice. But aggravated robbery 

contains two elements: (1) a robbery under § 29.02(a) and (2) an 

aggravator under § 29.03(a). To show that aggravated robbery is not a 

crime of violence, Mr. Wilkins needed to establish that both the robbery 

and the aggravator require a mens rea of only recklessness. Because we 

ultimately conclude that Mr. Wilkins’s robbery offense requires a mens rea 

greater than recklessness, we need not address his argument about the 

aggravator. 

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See United States v. Degeare, 884 F.3d 1241, 1245 (10th Cir. 2018). 

But in district court, Mr. Wilkins did not challenge classification of 

aggravated robbery as a crime of violence. So we apply the plain-error 

standard. See United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th 

Cir. 2005) (en banc). Under this standard, Mr. Wilkins must show an error 

that is plain, affects substantial rights, and seriously affects the fairness, 

integrity, or public reputation of judicial proceedings. Id. 

Ordinarily, a statute is indivisible unless we can tell with certainty 

that the alternative statutory components constitute elements (rather than 

means). United States v. Cantu, 964 F.3d 924, 929 (10th Cir. 2020). This 

court has not defined the level of certainty required for divisibility; at a 

minimum, we must be “at least more certain than not that a statute’s 

alternatives constitute elements.” United States v. Degeare, 884 F.3d 1241, 

1248 n.1 (10th Cir. 2018) (emphasis in original). But given the plain-error 

standard, our ultimate question is whether classification of the statutory 

components as elements would have constituted an obvious error.4 See 

pp. 3–4, 6–7, above. 

4

 Mr. Wilkins argues that we need not “‘definitively’ conclude that 

Texas aggravated robbery is indivisible.” Appellant’s Supp. Reply Br. at 2. 

We agree. Under the plain-error standard, we don’t require a defendant to 

conclusively prove indivisibility. See, e.g., United States v. Cantu, 964 

F.3d 924, 935 (10th Cir. 2020). 

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B. The district court could have reasonably considered the 

statutory components of Texas robbery as elements. 

To determine whether the statutory components constitute elements, 

we start by considering the pertinent state’s caselaw, the pattern jury 

instructions, and the statute itself. See United States v. Cantu, 964 F.3d 

924, 928 (10th Cir. 2020) (the state’s caselaw and the statutory text); 

Johnson v. Barr, 967 F.3d 1103, 1109 (10th Cir. 2020) (the pattern jury 

instructions). If those sources show with certainty whether the separate 

statutory components constitute elements or means, the inquiry ends. 

Cantu, 964 F.3d at 928. If the characterization remains uncertain, the court 

can “peek” at the record to determine whether the statutory components 

constitute elements or means. Id. at 928–29. 

1. Pattern Jury Instructions and State Caselaw 

Texas’s pattern jury instructions suggest that the statutory 

components are elements. But Mr. Wilkins points to two Texas state-court 

opinions as proof that the statutory components are means: 

a. Cooper v. State, 430 S.W.3d 426 (Tex. Crim. App. 2014) 

b. Burton v. State, 510 S.W.3d 232 (Tex. Ct. App. 2017) 

These opinions provide little help in characterizing the statutory 

components as elements or means. 

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a. Texas’s Criminal Pattern Jury Charges 

The state’s pattern jury instructions provide guidance on the content 

of Texas law. Johnson v. Barr, 967 F.3d 1103, 1109 (10th Cir. 2020); see 

also Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 45 (Tex. 2007) (“[O]ur 

trial courts routinely rely on the Pattern Jury Charges in submitting cases 

to juries, and we rarely disapprove of these charges.”). That guidance is 

particularly helpful here because 

 Mr. Wilkins pleaded guilty and 

 the record contained no case–specific jury instructions. 

See United States v. Titties, 852 F.3d 1257, 1270 n.15 (10th Cir. 2017) 

(considering the state’s pattern jury instructions in similar circumstances). 

 In Texas, the pattern jury instructions differ for the two subsections 

of the robbery statute. Compare Tex. Crim. Pattern Jury Charges § 87.2 

(Robbery by Threats), with Tex. Crim. Pattern Jury Charges § 87.1 

(Robbery Bodily Injury). Those differences “suggest[] that robbery by 

threat and robbery by bodily injury are separate crimes within one statute.” 

Martin v. Kline, No. 19-15605, 2021 WL 6102175, at *1 (9th Cir. Dec. 22, 

2021) (unpublished); see also United States v. Leaverton, 895 F.3d 1251, 

1255 (10th Cir. 2018) (basing divisibility in part on the uniform jury 

instructions’ indication that the statutory components require proof of 

different elements). So the pattern jury instructions support 

characterization of the statutory components as elements. 

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b. Cooper v. State 

Despite the pattern jury instructions, Mr. Wilkins points to Cooper v. 

State, 430 S.W.3d 426 (Tex. Crim. App. 2014). But there a majority of the 

court didn’t agree on whether the statutory components constituted 

elements or means. 

In Cooper, Texas’s highest criminal court found a double jeopardy 

violation when the defendant had been convicted of both “aggravated 

robbery by causing bodily injury” and “aggravated robbery by threat.” Id. 

at 427. Five out of eight participating judges joined the majority. 

Two judges in the majority wrote concurrences, each joined by 

another judge in the majority. Both concurrences agreed that “the ‘threat’ 

and ‘bodily’ injury elements of robbery [were] simply alternative methods 

of committing a robbery.” Id. at 434 (Keller, P.J., concurring); id. at 439 

(Cochran, J., concurring). Mr. Wilkins thus argues that the concurrences 

definitively treat the alternative phrases in the Texas robbery statute as 

means rather than elements. 

But the cited statements come from the concurrences, not the 

majority opinion. The concurrences included only a plurality (four of the 

eight judges). And under Texas law, the plurality does not constitute 

binding authority. See Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175, 

176–77 (Tex. 1994) (concluding that a prior plurality opinion didn’t 

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constitute authority for future cases when “a majority of the sitting court” 

had not agreed on the principles of law). 

Mr. Wilkins argues that the cited statements garnered a court 

majority because 

 the four concurring judges had joined the majority and 

 a fifth judge in the majority had not expressed disagreement. 

But we cannot read the fifth judge’s silence as implicitly adopting the 

reasoning of the concurrences. See Sands v. State, 64 S.W.3d 488, 494–95 

(Tex. Ct. App. 2001) (concluding that a prior concurrence didn’t reflect a 

majority of the court when three justices would reach the same outcome 

but didn’t join the majority’s reasoning). After all, the fifth judge in the 

majority could have incorporated this position if he had agreed with the 

concurrences. 

Mr. Wilkins argues that even if the concurrences do not bind us, they 

show that the double-jeopardy question turned on classification as 

elements or means. In support, Mr. Wilkins observes that 

 the dissenting judges in Cooper found no violation of double 

jeopardy, reasoning that robbery-by-injury and robbery-bythreat are different offenses and 

 Cooper overruled an opinion addressing classification of 

robbery-by-threat and robbery-by-assault as means or elements. 

Granted, we have consulted double-jeopardy cases when deciding 

divisibility. See, e.g., United States v. Cantu, 964 F.3d 924, 930 (10th Cir. 

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2020); United States v. McKibbon, 878 F.3d 967, 975 (10th Cir. 2017). But 

when we’ve considered double-jeopardy cases, their reasoning has clarified 

the characterization as elements or means. For example, we relied on a 

state-court opinion to find indivisibility because the court had found a 

legislative intent “to create a single, unitary offense” in enacting the 

pertinent statute. United States v. McKibbon, 878 F.3d 967, 975 (10th Cir. 

2017) (internal quotation marks & citation omitted). Similarly, we 

interpreted an opinion to support indivisibility when the state court had 

recognized that two counts addressed a single offense and shared the same 

elements. United States v. Cantu, 964 F.3d 924, 930 (10th Cir. 2020). 

In contrast, the majority opinion in Cooper noted in a single 

sentence, without any explanation, that the court had found a doublejeopardy violation, saying only that the court had “review[ed] the opinion 

of the court of appeals, the record, and the briefs of the parties.” Cooper v. 

State, 430 S.W.3d 426, 427 (Tex. Crim. App. 2014) (majority opinion). 

Without an explanation for this finding, we have little to help us classify 

the statutory components as elements or means. So the district court 

wouldn’t have committed an obvious error under Cooper by declining to 

treat the statutory components as means. 

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c. Burton v. State

Mr. Wilkins also relies on Burton v. State, 510 S.W.3d 232 (Tex. Ct. 

App. 2017). But Burton didn’t expressly address classification as elements 

or means. 

In Burton, an intermediate appellate court found no violation of the 

defendant’s right to a unanimous verdict when the jury could infer 

aggravated robbery from either a bodily injury or threat. Id. at 237. The 

Burton court ultimately held that “causing bodily injury or threatening the 

victim [were] different methods of committing the same [aggravated 

robbery] offense.” Id. (emphasis added). But what did the court mean by 

methods? The court did not say, leaving it “unclear whether the [Burton] 

court was referring to the elements of a crime, the means of satisfying a 

single element, or the crimes set forth by a statute under a [divisibility] 

analysis.” United States v. Lerma, 877 F.3d 628, 634 n.4 (5th Cir. 2017). 

Despite this lack of clarity in Burton, Mr. Wilkins interprets the 

court’s use of the term methods as synonymous with means. This 

interpretation is possible, but not definitive, for courts sometimes use the 

term methods when referring to alternative statutory components that could 

consist of either elements or means. See, e.g., United States v. Harris, 950 

F.3d 1015, 1017 (8th Cir. 2020) (“If the statute lists alternative methods of 

committing the offense, we must determine whether the statute lists 

alternative elements that define separate crimes and must be found by a 

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jury or whether the statute merely ‘specifies various means of fulfilling the 

crime’s elements.’” (quoting United States v. Doyal, 894 F.3d 974, 975 

(8th Cir. 2018) (emphasis added))). 

Mr. Wilkins also characterizes the statutory components of Texas 

robbery as means because Burton did not require jury unanimity on 

whether the defendant had committed robbery by threat or by injury. 

Burton v. State, 510 S.W.3d 232, 236 (Tex. App. 2017); see also United 

States v. Degeare, 884 F.3d 1241, 1249–50 (10th Cir. 2018) (basing 

indivisibility on a jury’s ability to find guilt despite internal disagreement 

among the jury). But if Mr. Wilkins were right, we would have an internal 

conflict among Texas’s intermediate appellate courts. In an earlier opinion, 

Woodard v. State, for example, the Texas Court of Appeals had held that 

the robbery statute “provide[d] two separate, underlying robbery 

offenses—robbery causing bodily injury and robbery by threat.” 294 

S.W.3d 605, 608 (Tex. Ct. App. 2009). 

In Burton, the court didn’t address—much less overrule—Woodard’s 

characterization of the two statutory components as separate offenses.5

 So 

5

 The Burton court did refer to Woodard in a footnote. But that 

reference addressed only Woodard’s consideration of the aggravating 

factors of aggravated robbery, stating that they involved “simply 

descriptions or means by which the underlying offense of robbery causing 

bodily injury can be committed.” Burton v. State, 510 S.W.3d 232, 237 n.4 

(Tex. Ct. App. 2017) (citing Woodard v. State, 294 S.W.3d 605, 609 (Tex. 

Ct. App. 2009)). 

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the district court wouldn’t have committed an obvious error by declining to 

characterize the statutory components as means based on Burton. 

* * * 

The cited state-court opinions thus do not resolve the issue of 

divisibility. 

2. Statutory Text 

Besides the pattern jury instructions and case law, we also consider 

the statute itself. The alternative statutory components, listed in separate 

numbered paragraphs,6

 involve not only different conduct but also different 

elements. “The inclusion of different sets of mens rea elements is strong 

evidence that the Texas robbery statute is divisible,” involving a difference 

in elements rather than means. Martin v. Kline, No. 19-15605, 2021 WL 

6102175, at *1 (9th Cir. Dec. 22, 2021) (unpublished); see also United 

States v. Garrett, 24 F.4th 485, 489 (5th Cir. 2022) (reasoning that the 

statutory components in Texas’s robbery statute constitute elements in part 

6

 Granted, we have held that this factor alone would not show with 

certainty that the statutory components constitute elements. United States 

v. Degeare, 884 F.3d 1241, 1253 (10th Cir. 2018). But we can consider this 

factor as one of the statutory characteristics to determine whether the 

statutory components constitute elements or means. 

 Mr. Wilkins points out that the Supreme Court hasn’t listed the 

existence of separate subsections as a factor suggesting divisibility. But we 

often consider factors beyond those that the Supreme Court has considered. 

See, e.g., United States v. Hamilton, 889 F.3d 688, 696 (10th Cir. 2018). 

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because of the different mental states for robbery-by-injury and robberyby-threat). 

We can also consider analogous state statutes in determining 

divisibility. See, e.g., Johnson v. Barr, 967 F.3d 1103, 1109 (10th Cir. 

2020). For example, Texas’s assault statute contains three subdivisions in 

separate paragraphs, divided by semicolons. Each paragraph describes 

different behavior and mens rea. See Tex. Penal Code § 22.01.7

 These 

subdivisions, according to the Texas Court of Criminal Appeals, describe 

“three distinct criminal offenses.” Landrian v. State, 268 S.W.3d 532, 540 

(Tex. Crim. App. 2008). The court thus explained that “aggravated assault 

by causing bodily injury” and “aggravated assault by threat” were two 

separate crimes: “The first is a result-oriented offense and the second is a 

conduct-oriented offense.” Id.; see also United States v. Garrett, 24 F.4th 

7

 In Texas, a person commits assault “if the person: 

(1) intentionally, knowingly, or recklessly causes bodily injury to 

another, including the person’s spouse; 

(2) intentionally or knowingly threatens another with imminent 

bodily injury, including the person’s spouse; or 

(3) intentionally or knowingly causes physical contact with another 

when the person knows or should reasonably believe that the 

other will regard the contact as offensive or provocative.” 

Tex. Penal Code Ann. § 22.01. 

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485, 489 (5th Cir. 2022) (“The Texas simple robbery statute creates two 

distinct crimes, robbery-by-injury and robbery-by-threat.”). 

Mr. Wilkins points out that the two statutory components trigger the 

same punishments. The presence of the same punishment suggests

characterization as means, but that suggestion isn’t dispositive. United 

States v. Bouziden, 725 F. App’x 653, 657 (10th Cir. 2018) (unpublished).8

3. Record Documents 

When uncertainty remains after considering the pattern jury 

instructions, state caselaw, and the state statute itself, we can “peek” at the 

record documents to determine whether the items listed in the statute are 

elements or means. Mathis v. United States, 136 S. Ct. 2243, 2256–57 

(2016) (quoting Rendon v. Holder, 782 F.3d 466, 473–474 (9th Cir. 2015) 

(Kozinsky, J., dissenting)).9

 

Mr. Wilkins argues that the record supports characterization as 

means because the state court did not call the charge against Mr. Wilkins 

“anything but ‘aggravated robbery’” or cite a specific subsection of the 

robbery statute. Appellant’s Supp. Reply Br. at 4 n.1. For this argument, 

Mr. Wilkins cites multiple orders deferring adjudication. 

8

 Bouziden is persuasive but not precedential. See 10th Cir. R. 32.1(A). 

9

 Mr. Wilkins attaches the relevant documents to his supplemental 

brief and requests judicial notice of these documents. See Fed. R. Evid. 

201(b), (c)(2), (d). We grant his request. 

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But in “peeking” at the record to determine divisibility, we consider 

only “conclusive records made or used in adjudicating guilt,” such as the 

charging document, jury instructions, and plea agreement. United States v. 

Abeyta, 877 F.3d 935, 942 (10th Cir. 2017) (quoting Shepard v. United 

States, 544 U.S. 13, 21 (2005)). Orders deferring adjudication do not help 

us on divisibility. See id. (declining to “peek” at the docket sheet because 

it falls short of being a “‘conclusive record[] made or used in adjudicating 

guilt’”). 

In the indictment, only the first paragraph sets out a charge of 

aggravated robbery. This paragraph includes 

 one subsection of robbery (“intentionally or knowingly 

threaten[ing] or plac[ing] another in fear of imminent bodily 

injury or death”), § 29.02(a)(2), and 

 one aggravator (“us[ing] and possess[ing] a deadly weapon”), 

§ 29.03(a)(2). 

In four additional paragraphs, the indictment states how Mr. Wilkins had 

committed robbery by “intentionally, knowingly and recklessly” causing 

bodily injury to the victim under § 29.02(a)(1), but not “serious” bodily 

injury—an aggravator under § 29.03(a)(1). True Bill of Indictment, No. 

219-81050-99 (Collin Cnty., Texas Dist. Ct. Nov. 10, 1999). And none of 

these paragraphs refer to any additional aggravators under § 29.03(a). See 

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id.10 Because the indictment includes only one charge of aggravated 

robbery and that charge refers only to one statutory component of Texas 

robbery under § 29.02(a), we can infer that the statute contains a list of 

elements rather than means. Mathis v. United States, 136 S. Ct. 2243, 2257 

(2016). 

Mr. Wilkins’s guilty plea also supports characterization as elements. 

See United States v. Adkins, 883 F.3d 1207, 1215 (9th Cir. 2018) 

(concluding that a plea agreement shows that the statutory elements 

constitute different elements rather than means). When Mr. Wilkins 

pleaded guilty, he admitted only the conduct alleged in the first paragraph 

of the indictment, the part charging aggravated robbery: “I . . . did then 

and there intentionally and knowingly, while in the course of committing 

theft of property and with intent to obtain and maintain control of said 

property, threaten and place [the victim] in fear of imminent bodily injury 

and death, and used and exhibited a deadly weapon, namely: a firearm.” 

Stipulation of Facts, State v. Wilkins, No. 219-81050-99 (Collin Cnty., 

Texas Dist. Ct. Dec. 9, 1999). This admission refers only to one part of the 

statute on aggravated robbery. 

10 The indictment also includes one paragraph on criminal attempt, 

alleging that Mr. Wilkins committed aggravated robbery and robbery 

through acts “amounting to more than mere preparation that tend[ed] but 

fail[ed] to effect the commission of offense intended.” Tex. Penal Code 

§ 15.01(a). 

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The indictment and stipulation arguably leave some uncertainty on 

divisibility. For example, the indictment includes multiple paragraphs 

under the heading “aggravated robbery” without explaining whether the 

charge relates to one crime or multiple crimes. Judges could thus differ in 

how they interpret their peeks at the state-court records. But the mere 

existence of uncertainty and reasonable disagreement does not mean that 

characterization as elements would have constituted an obvious mistake. 

C. Two other circuits have ruled that the statutory components 

of Texas robbery constitute elements, and we are reluctant 

to create a circuit split. 

Our court hasn’t addressed the divisibility of the Texas statute on 

robbery or aggravated robbery. But the Fifth and Ninth Circuits have 

addressed the divisibility of Texas robbery, and both have treated the 

statutory components as elements. See United States v. Garrett, 24 F.4th 

485, 489 (5th Cir. 2022); Martin v. Kline, No. 19-15605, 2021 WL 

6102175, at *1 (9th Cir. Dec. 22, 2021) (unpublished); United States v. 

Wehmhoefer, 835 F. App’x 208, 211–12 (9th Cir. 2020) (unpublished). 

Granted, these opinions aren’t binding on a question of Texas law. See 

United States v. Faulkner, 950 F.3d 670, 674 n.5 (10th Cir. 2019) (“[O]ur 

divisibility inquiry looks to state, not federal, court decisions.”). But one 

of the two circuits to address the issue was the Fifth Circuit. And several 

other circuits ordinarily defer to a federal circuit court’s interpretation of 

state law when the circuit includes that state. See Whitewater W. Indus., 

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Ltd. v. Alleshouse, 981 F.3d 1045, 1051 (Fed. Cir. 2020); In re Dow 

Corning Corp., 778 F.3d 545, 549 (6th Cir. 2015); Desiano v.WarnerLambert & Co., 467 F.3d 85, 90 (2d Cir. 2006), aff’d sub nom., WarnerLambert Co., LLC v. Kent, 552 U.S. 440 (2008); Dawn Equip. Co. v. 

Micro-Trak Sys., Inc., 186 F.3d 981, 989 n.3 (7th Cir. 1999); Charter Oil 

Co. v. Am. Employers’ Ins. Co., 69 F.3d 1160, 1164 (D.C. Cir. 1995).11 For 

example, the Sixth Circuit expressly stated that it would defer to the Fifth 

Circuit in interpreting Texas law on divisibility. See United States v. 

Cavazos, 950 F.3d 329, 335 & n.2 (6th Cir. 2020). 

Even without such deference, we are ordinarily reluctant to create a 

circuit split without a “sound reason.” United States v. Thomas, 939 F.3d 

1121, 1130–31 (10th Cir. 2019) (quoting Anderson v. Private Cap. Grp., 

549 F. App’x 715, 718 (10th Cir. 2013) (unpublished)). Because Mr. 

Wilkins presents no compelling basis to create a circuit split based on the 

pattern jury instructions, the state caselaw, the state statute, or the record 

documents, we lack a sound reason to reject the other circuit courts’ 

characterization of the statutory components as elements. Under the plain11 The Supreme Court takes a similar approach. Elk Grove Unified Sch. 

Dist. v. Newdow, 542 U.S. 1, 16 (2004) (“Our custom on questions of state 

law ordinarily is to defer to the interpretation of the Court of Appeals for 

the Circuit in which the State is located.”), abrogated in part on other 

grounds, Lexmark Intern., Inc. v. Static Control Components, 572 U.S. 

118, 127 (2014). 

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error standard, we thus conclude that the district court wouldn’t have 

committed an obvious error by characterizing the statutory components as 

elements. 

III. Under the modified categorical approach, Mr. Wilkins was 

convicted of a crime of violence. 

Because the district court would not have obviously erred by 

considering the statutory components as elements, we must 

 apply the modified categorial approach and 

 consider which crime was committed. 

In pleading guilty, Mr. Wilkins stipulated to facts matching the crime of 

intentionally or knowingly threatening or putting another in fear of 

imminent bodily injury or death (using or exhibiting a deadly weapon). 

Tex. Penal Code § 29.02(a)(2), § 29.03(a)(2). And Mr. Wilkins does not 

deny that this offense would constitute a crime of violence under the 

sentencing guidelines. 

IV. Conclusion 

If an error exists, it would not have been obvious. For an obvious 

error on divisibility, the defendant need not identify a precedent or state 

case addressing the same statute. See United States v. Cantu, 964 F.3d 924, 

935 (10th Cir. 2020) (precedent); United States v. Titties, 852 F.3d 1257, 

1272 n.19 (10th Cir. 2017) (state case). But merely pointing to an 

uncertainty wouldn’t satisfy the plain-error standard. Two circuit courts 

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have concluded that the Texas robbery statute identifies two separate 

crimes, and one of those circuits sometimes obtains deference when 

applying Texas law. See pp. 19–21, above. So even if the district court had 

erred, the error would not have been obvious. 

The district court could have reasonably viewed the statutory 

components as elements. The statutory components provide different mens 

rea requirements in separate paragraphs, the pattern jury instructions refer 

to the separate statutory components as different crimes, and the 

indictment and factual basis for the plea clarify that Mr. Wilkins was 

charged with a crime requiring intentional or knowing conduct. Given 

these circumstances, the district court would not have committed an 

obvious error by characterizing the statutory components as elements. 

In the absence of an obvious mistake, application of the modified 

categorical approach would not have constituted a plain error. The 

stipulation of facts shows that Mr. Wilkins pleaded guilty to the set of 

elements requiring intentional or knowing conduct. So if the district court 

had erred in applying the modified categorical approach, the error would 

not have been plain. We thus affirm the sentence. 

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